Is (name withheld for cultural reasons) & Others on behalf of Wajarri Yamatji v Boadicea Resources Ltd and Another

[2017] NNTTA 14

NATIONAL NATIVE TITLE TRIBUNAL

IS (name withheld for cultural reasons) & Others on behalf of Wajarri Yamatji v Boadicea Resources Ltd and Another [2017] NNTTA 14 (12 April 2017)

Application No: WO2016/0868

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into an expedited procedure objection  application

IS (name withheld for cultural reasons) & Others on behalf of Wajarri Yamatji (WC2004/010)

(native title party)

- and -

Boadicea Resources Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date of dismissal:	12 April 2017
Date of reasons:	12 April 2017

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with directions – objection application dismissed
Legislation:	Native Title Act 1993 (Cth) ss 29, 148(b)
Cases:	Teelow v Page [2001] NNTTA 107; 166 FLR 266 (‘Teelow v Page’)
Representatives of the native title party:	Mr Anthony Dann, Wadjarri Consulting

Representative of the grantee party:		Mr Clarke Dudley, Managing Director, Boadicea Resources Ltd
Representatives(s) of the Government party:	Ms Bethany Conway, Department of Mines and Petroleum

REASONS FOR DETERMINATION

Background

1. On 24 August 2016, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E70/4875 to Boadicea Resources Ltd without requiring Boadicea Resources Ltd or the State to negotiate with the Wajarri Yamatji native title claim group (the Wajarri Yamatji claim group). The area of the proposed licence is wholly overlapped by the Wajarri Yamatji claim group’s native title claim (WC2004/010).

2. By including an expedited procedure statement in the public advertisement of the licence, the State has asserted the grant can be made without such negotiation. That is, they say the grant of this licence can be made expeditiously, without negotiation between the Wajarri Yamatji claim group, the State, and Boadicea Resources Ltd.

3. On 7 December 2016, the Wajarri Yamatji claim group lodged an objection with the National Native Title Tribunal against the application of the expedited procedure to the grant of the licence. To answer the question of whether the licence can be granted in such an expedited way, I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry in this matter.

Should the inquiry proceed or should the matter be dismissed?

1. On 10 January 2017, Boadicea Resources Ltd advised the Tribunal that agreement was not likely and Boadicea Resources Ltd wanted this matter to proceed to an inquiry. On 13 January 2017, Member James McNamara made directions requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted to the grant. The Wajarri Yamatji claim group was directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 24 February 2017. 

2. Neither contentions nor evidence were received from the Wajarri Yamatji claim group by 24 February 2017. On 27 February 2017, the State wrote to the Tribunal and all parties requesting the objection be dismissed because the Wajarri Yamatji claim group had failed, within a reasonable time, to proceed with the objection or comply with the Tribunal's directions.

3. On 28 February 2017, the Tribunal wrote to the Wajarri Yamatji claim group’s representative (Mr Anthony Dann) and Boadicea Resources Ltd, asking them to respond to the State's request to dismiss the objection. Parties were given until 6 March 2017 to respond. No response was received from the Wajarri Yamatji claim group.

4. I note Mr Dann is a Wajarri Yamatji claim group heritage provider, and had only relatively recently taken carriage of expedited procedure inquiry matters. Taking these factors into account, I called for a directions hearing to be held on 14 March 2017, to ensure all parties understood the effect of non-compliance, and the consequences of dismissal.

5. At that directions hearing on 14 March 2017, I had detailed discussions with all parties about the inquiry process. I granted a further extension of the Wajarri Yamatji claim group’s compliance date to 28 March 2017, to allow Mr Dann time to obtain advice and lodge any materials in support of the group’s objection application.

6. Neither contentions nor evidence were received from the Wajarri Yamatji claim group by 28 March 2017. On 31 March 2017, the State wrote to the Tribunal and all parties requesting the objection be dismissed because the Wajarri Yamatji claim group had again failed, within a reasonable time, to proceed with the objection or comply with the Tribunal's directions.

7. On 31 March 2017, the Tribunal wrote to the Wajarri Yamatji claim group and Boadicea Resources Ltd, asking them to respond to the State's request to dismiss the objection. Parties were given until 7 April 2017 to respond. On 2 April 2017, Boadicea Resources Ltd’s representative wrote to the Tribunal to advise that he supported the State’s request to dismiss the objection. No response was received from the Wajarri Yamatji claim group.

8. In considering this dismissal, I have regard to the applicable principles set out by the Tribunal in Teelow v Page (at [13]). In particular, I note the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection.

9. As at the date of this determination, no response has been received the Wajarri Yamatji claim group as to why the objection should not be dismissed, nor has any request for extension of directions been received, nor any reason for non-compliance.

10. In the circumstances, the Wajarri Yamatji claim group has been given sufficient opportunity to comply with directions set by the Tribunal, and it would be unfair to prejudice the other parties with further delays.  I do not need to answer the question of whether the licence can be granted in an expedited way because I have concluded the objection should be dismissed.

Decision

1. The objection application against exploration licence E70/4875 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
12 April 2017